Surely Allstate doesn’t think Judge Sarah Vance is the “other brother Darryl” – “good hands” trying to put words in her mouth (a Branch qui tam updaate)

Left to right: Larry, his "other brother Darryl, and his "brother Darryl"

In my most recent post on the three Katrina qui tam cases, I compared Allstate to  Larry, the character on the old Newhart show who spoke for his two mute brothers – “my brother Darryl and my other brother Darryl”.   This update on the Branch Consultants’ qui tam case is the first of three follow-up posts, each focusing on a single case.  While Louisiana federal district Judge Sarah Vance is not only more attractive than Larry’s “other brother Darryl”, pictured center in photo on the right, one might think she, too, mute given Allstate’s attempt to put words in her mouth.

Allstate certainly has good reason to be concerned.  The Company has the distinction of being a named defendant in all the Katrina qui tam cases.  Allstate argues it is a distinction without a difference and that, on that basis,  Judge Vance lacks jurisdiction under the “first to file” requirement of the FCA (False Claims Act). A related SLABBED post,  Allstate files Answer in Branch – and this I couldn’t make up!, introduced Allstate’s position; i.e., the Rigsby sisters were the first to file.

Despite having once invited Branch counsel Allen Kanner to “kiss my***ex rel“, I do not believe Judge Vance can determine jurisdiction until discovery has been completed in Branch, the recently unsealed ex rel Denenea v Allstate and Rigsby with the scope of expanded.   Allstate represents the FCA restriction on similar claims too narrowly, IMO, but more importantly, there is currently no way to know for certain.

My position, however, is contrary to the strategy of the “wool-over-court’s-eye” scheme concocted, or so I believe, by Allstate and other insurers as an element in the overall scheme of fraudulent claims handling that followed Hurricane Katrina – and it is the context of that wet-dog smelling scheme unraveling before Judge Vance that we examined the current status of the Branch Consultants’ qui tam case.

If you knit, you know that a dropped stitch can’t be covered.  Magistrate Shushan’s recent Orders make it clear that dropping a stitch in a “wool-over-court’s-eye” scheme also can’t be covered. Continue reading “Surely Allstate doesn’t think Judge Sarah Vance is the “other brother Darryl” – “good hands” trying to put words in her mouth (a Branch qui tam updaate)”

What took you guys in Northbrook so long……

Nowdy sent me an email letting me know our friends from Northbrook Illinois have signed on to our twitter page. Now aside from publically calling for Tom Wilson’s resignation and calling Allstate’s Board of Directors “a band of idiots” for expertly assisting Mr Wilson in the destruction of shareholder value I have no idea why they would want to follow little ol’ us down here.  :-)

Layla sends her regards Tom. And Layla sweet, nice voice!

[youtube=http://www.youtube.com/watch?v=Sx5KnOcgXDM]

Shall we dance? Magistrate Shushan invites Allstate and Pilot adjusting to the party – Order grants in-part Motion to Amend Complaint REVISED AND CORRECTED

Oops!  With an apology to Judge Vance and another to SLABBED readers, I have corrected my error and appropriately attributed the Order discussed in this post to Magistrate Shushan.

Magistrate Shushan’s autopsy-Order on the 2nd Amended Complaint filed by the Branch Consultants poses a new and entirely different challenge for reporting on an order issued in Branch –  turning a technical manual into a non-fiction novel.  In that context, Allstate is somewhat of a MacGuffin, “a plot element that catches the viewers’ attention…Commonly, though not always, the MacGuffin is the central focus of the film in the first act, and later declines in importance as the struggles and motivations of characters play out”.

Although Allstate is certain to be the “central focus” of public interest in the Order, it is important to note the Magistrate doesn’t know how this character will play out and her Order” is stayed until the District Judge resolves any appeal of the order”.   In that regard, a footnote in the Order is telling of the story at this point:

In support of it motion for leave to amend, Branch states:

To be clear, whether Allstate is entitled to immunity under the first-to-file provision of the False Claims Act is not at issue in this motion (for leave to amend), and Branch has not attempted to fully brief the issue here. Rather, what is at issue is merely whether Branch may amend its complaint to attempt to state a claim against Allstate.

The story of claims handling following Hurricane Katrina is more of a thriller than a typical mystery.  However, the Magistrate’s dénouement of the plot missed important clues and I momentarily digress from the discussion of Allstate’s role to examine her conclusion and related denial of the proposed incorporation of an inflated-revenue scheme.  Branch alleged a loss-shifting scheme in both the original and first amended complaint.

In her Order, Magistrate Shushan declared, “The loss-shifting and inflated-revenue motives create two entirely different schemes”.  I contend otherwise and suggest her decision indicates knowledge of the law can not overcome lack of experience with what “po’ folks” call “getting by” else she, too, would recognize the two are one in the same. 

On a much larger scale, the situation insurance companies faced after Katrina was similar.  Like those who can’t meet their obligations when faced with an unexpected cost, insurers employed strategies that delay payment of thousands of policyholder claims and made partial payment on thousands more in the guise of mediated settlements. However, they also engaged in a “broad scheme” to “get by” for reasons that have been well documented since Katrina such as investments that were worth less or worthless.  Continue reading “Shall we dance? Magistrate Shushan invites Allstate and Pilot adjusting to the party – Order grants in-part Motion to Amend Complaint REVISED AND CORRECTED”

Qui Tam hearing? Did someone say there was a Qui Tam hearing today.

Well actually Judge Vance said she would be hearing arguments on selected issues this morning. We hope to have something a bit later today on the proceedings. Stay tuned.

sop

Judge Vance denies Defendants Motion for Interlocutory Appeal and Branch qui tam rings in the new with Motion to amend complaint adding Allstate and Pilot Catastrophe Service

Defendants contend that a specific question of law controls this matter: “whether a ‘sleuth’ like Branch, without first-hand involvement in an alleged fraud, can qualify as an ‘original source’ by providing additional examples of a publicly disclosed, alleged fraudulent scheme.”

…The Court need not resolve this question because district courts do not certify “questions” for the court of appeals upon the grant of a § 1292(b) motion.

The eleven-page Order and Reasons s is classic Vance – another pick ’em up, put ’em down tutorial on qui tam law!

Defendants’ primary argument is this: the Supreme Court, in Rockwell International Corp. v. United States, 549 U.S. 457, 470- 71 (2007), abrogated the Fifth Circuit’s “original source”decision in United States ex rel. Laird v. Lockheed Martin Eng’g & Sci. Servs. Co., 336 F.3d 346, 356 (5th Cir. 2003)…Defendants contend that the Court’s Order “diverges from Fried based on pre-Rockwell, out-of-circuit decisions,” R. Doc. 237 at 1, and that there is substantial ground for difference of opinion as to whether a relator who initiates an investigation after an alleged fraud can be considered an original source…

Initially, although defendants make repeated use of the term “pre-Rockwell,” they point to nothing in Rockwell itself that makes it a watershed decision as to the specific issue they identify. Continue reading “Judge Vance denies Defendants Motion for Interlocutory Appeal and Branch qui tam rings in the new with Motion to amend complaint adding Allstate and Pilot Catastrophe Service”

Since we’re talking insurance adjusting today

Jessica at Indexed drew a salient card recently which captures some of the general public perceptions of claims professionals. Warning if you are an insurance adjuster on a bad day or work at Pilot, E. A. Renfroe or Worley please don’t peek below the fold. Continue reading “Since we’re talking insurance adjusting today”

Not going bowling but packin’ …

Brains –  and why not, she already had the ….s in the bag when she filed the Notice of Filing of Additional Evidence in Support of Application for Review of and Objection to, June 5, 2009 Order of United States Magistrate Judge in Bossier v State Farm.

…the Plaintiff, by and through undersigned counsel, and files the deposition of Matthew Thiele taken on July 13, 2009, in further support of his Application for Review of, and Objection to, June 5, 2009, Order of United States Magistrate Judge. (deposition linked in Notice)

Selected portions of the deposition deposition follows – be certain to pull up the link and read it all.  The “undersigned counsel,” Judy Guice, is asking the questions ( indicated by “Q”)  and Matthew Thiele, an adjuster with Pilot Catastrophe following Hurricane Katrina, is responding (indicated by “A”):

Pages from Bossier depo of Matthew Thiel Continue reading “Not going bowling but packin’ …”

Did Chip Merlin find a slabberator? Are Computerized Estimates by Pilot Catastrophe Adjusters Low Because of a Special Database? (with a Rigsby qui tam tag on from SLABBED)

Did Chip Merlin discover the slabberator mentioned in the scheme? That I don’t know; but, he definitely happened upon some interesting information  — cross posted below — and the title of his related postposes a very interesting question: Are Computerized Estimates by Pilot Catastrophe Adjusters Low Because of a Special Database?.  SLABBED tags on to the end of Merlin’s post with comments linking the Rigsby qui tam.

Some Mondays are more interesting than others. When I go to conferences with adjusters, I make a point to ask about “in the street” information on insurers I am litigating against. The information and leads to witnesses or evidence are often extremely valuable to my clients. Adjusters know when the orders from claims management are wrong and aimed at paying less than what is fairly owed. Most want to disclose facts about insurers that wrongly demand underpayment.

A current problem regarding the disclosure of such activities is that catastrophe firms and insurers usually make the individual catastrophe adjusters sign confidentiality and non-disclosure agreements preventing whistle blowing from ever taking place. These agreements should be illegal. Can you imagine any reason society should tolerate contracts that prevent employees from disclosing improper claims conduct? What if the mafia could enforce such agreements? Yet, that is largely why Renfroe sued the Rigsby sisters–to shut them up about State Farm’s multiple engineering reports indicating excluded flood rather than covered wind caused damage to State Farm’s customers. (emphasis added @ SLABBED) Continue reading “Did Chip Merlin find a slabberator? Are Computerized Estimates by Pilot Catastrophe Adjusters Low Because of a Special Database? (with a Rigsby qui tam tag on from SLABBED)”